White v. Wilson
106 Mo. App. 406
Mo. Ct. App.
1904
Check Treatment
GOODE, J.

(after stating the ’facts). — No.contention is made that the plaintiff was not the head of a family when the mare was levied on and the evidence conclusively shows she was. The mare was a work animal and exempt from execution. R. S. 1899, sec. 3159; Davis v. Williamson, 68 Mo. App. 307. Plaintiff claimed her exemption as soon as the levy was made and before sale; so the claim was timely. State ex rel. v. O’Neil, 78 Mo. App. 20.

The defense to the action is that the plaintiff is precluded by the judgment rendered in the case of Wilson against the administrator of her deceased husband and herself. It is argued that she ought to have asserted her claim and had it adjudicated at the trial of that cause, and that having failed to do so she could not assert it afterwards. This argument- is founded on the last proviso of section 4340 of: the Revised Statutes. That statute says all real and personal property belonging to a-woman at her marriage, or .which comes to her during coverture by gift, bequest, inheritance, etc., shall not be liable to be taken by any process.of law for the debts *411of her husband; with a proviso that such property shall be subject to execution for any debt of the husband created for necessaries for the wife or family. The last clause of the section reads as follows:

“Provided, that before any such execution shall be levied upon any separate estate of a married woman, she shall have been made a party to the action, and all questions involved shall have been therein determined, and shall be recited in the judgment and the execution thereon.”

The position of the defendant’s counsel is that by virtue of that paragraph of the statute, every question concerning the right to levy on the mare must have been determined in the judgment in the other case, including her right to claim the animal as exempt from execution. This notion is wholly untenable. The statute relied on. takes into consideration a proceeding against a husband to which his wife is made a party defendant in order to obtain an execution against her property for the judgment that may be rendered, on the ground that the debt was incurred by the husband for necessaries for the family. The statute was not enacted with reference to the death of the husband pending such a proceeding and the case going forward against his wife and the administrator of his estate. Such being the purpose of the enactment, it is apparent the legislature did not intend a wife should claim an exemption of property from execution in the suit; because, so long as her husband lives she is not the head of a family and not entitled to claim her separate property as exempt. In the suit brought by Wilson, plaintiff’s husband died before judgment was rendered and the cause proceeded against Mrs. White and Darroeh, the administrator. She became the head of the family at her husband’s death; but the statute did not impose on. her the duty of claiming an exemption in the pending suit on pain of losing her right to do. so. The questions the statute requires to be adjudicated; before execution issues against a wife’s separate estate for *412necessaries, are whether the debt sued for was incurred by the husband for family necessaries and whether the wife has a separate estate against which an execution may issue; not her right to claim exemptions as the head of the family if, peradventure, her husband dies before judgment. That the questions contemplated by the statute are those stated, was decided in Megraw v. Woods, 93 Mo. App. 647. Mrs. White asserted her right promptly, and as the property in controversy is undoubtedly exempt from execution, her right to recover its value is clear. Plaintiff bought with full knowledge of the facts.

The judgment is, therefore, reversed and the cause remanded.

Bland, P. J., and Reyburn, J., concur.